Industry’s Growth Leads to Leftover Embryos, and Painful Choices

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Angel Watts and her husband, Jeff, center left and right, and their four children visiting with Richard Galloway and his wife, Rayn, far left and right, recipients of Ms. Watts's six unused frozen embryos.CreditJoe Buglewicz for The New York Times

After years of infertility, Angel and Jeff Watts found a young egg donor to help them have a baby. They fertilized her eggs with Mr. Watts’s sperm and got 10 good embryos. Four of those embryos were transferred to Ms. Watts’s womb, resulting in two sets of twins — Alexander and Shelby, now 4 years old, and Angelina and Charles, not yet 2.

But that left six frozen embryos, and on medical advice, Ms. Watts, 45, had no plans for more children. So in December she took to Facebook to try to find a nearby Tennessee family that wanted them.

“We have 6 good quality frozen six-day-old embryos to donate to an amazing family who wants a large family,” she posted. “We prefer someone who has been married several years in a steady loving relationship and strong Christian background, and who does not already have kids, but wants a boat load.”

In storage facilities across the nation, hundreds of thousands of frozen embryos — perhaps a million — are preserved in silver tanks of liquid nitrogen. Some are in storage for cancer patients trying to preserve their chance to have a family after chemotherapy destroys their fertility. But most are leftovers from the booming assisted reproduction industry, belonging to couples like the Wattses, who could not conceive naturally.

And increasingly families, clinics and the courts are facing difficult choices on what to do with them — decisions that involve profound questions about the beginning of life, the definition of family and the technological advances that have opened new reproductive possibilities.

Since the first American “test tube” baby was born in 1981, in vitro fertilization, at a cost of $12,000 or more per cycle, has grown to account for more than 1.5 percent of all United States births.

The embryos with the greatest chance of developing into a healthy baby are used first, and the excess are frozen; a 2002 survey found about 400,000 frozen embryos, and another in 2011 estimated 612,000. Now, many reproductive endocrinologists say, the total may be about a million.

Couples are generally glad to have the leftover embryos, backups in case a pregnancy does not result from the first tries.

“But if I ask what they’ll do with them, they often have a Scarlett O’Hara response: I’ll think about that tomorrow,” said Dr. Mark V. Sauer, of Columbia University’s Center for Women’s Reproductive Care. “Couples don’t always agree about the moral and legal status of the embryo, where life begins, and how religion enters into it, and a lot of them end up kicking the can down the road.”

There are no national statistics on what happens with these leftover embryos. As a practical matter, many sit in storage indefinitely, academic researchers say, either at fertility clinics or other facilities, costing $300 to $1,200 a year. A small percentage of people stop paying the storage fees and leave it to the clinic or facility to figure out what to do.

But most people grapple among these choices: using them to have more babies; thawing and disposing of them; donating them for research; or, like the Wattses, giving them to another family.

For many, the decision is wrenching, researchers say.

“People might start out thinking they would donate them to research, or give their extras to someone else with need,” Dr. Sauer said. “But once they have a baby, they change their minds, thinking it would be too weird to have another child out there, just like their son or daughter.”

Many couples see their embryos as virtual children, fertility doctors say, and the numbers willing to give them to another family are increasing. According to the American Society for Reproductive Medicine, donated embryos were used in 1,084 transfers in 2013, up from 596 in 2009. They are meeting a demand.

“It’s becoming more common, people reaching out to fertility clinics to see if they have embryos available for donation, or looking for referrals online.” said Elizabeth Falker, a New York lawyer. “I love it, since it provides a family to someone who’s run out of money to proceed any other way, and it uses embryos that would otherwise sit in cryopreservation indefinitely.”

To meet the demand, a fertility clinic in California has even created a controversial practice of creating batches of embryos from donor eggs and sperm, to share among several families.

Some people, saying they were troubled to be destroying a potential child, have created their own disposal ceremony — or, in a procedure known as compassionate transfer, have had a doctor place the embryos in the womb of the woman who made them, at a time of the month when she will not become pregnant. A few families have transferred ownership of the embryos to their adult children.

Sometimes couples disagree about who has the right to use their embryos. The actress Sofia Vergara and her ex-fiancé Nick Loeb have been fighting over the frozen embryos they created, providing weeks of media fodder, including Mr. Loeb’s Op-Ed article in The New York Times. Some cases have landed in court, where there is little guidance or precedent for judges struggling with this new territory, and so far, little consistency in their rulings.

In Illinois, the courts have said it should be a matter of contract. But judges in Massachusetts have said such contracts are not enforceable by the courts. Other courts have called for balancing the interests, and considering whether one party has no other option for having a baby, while others still have required mutual consent by the man and the woman when the embryos are to be used.

Most courts have sided with the party who does not want the embryos used. When an embryo exists outside a woman’s body, it seems, men and women have the same right not to procreate.

Then there is the religious dimension. Medical groups celebrate the advances in reproductive technology that have allowed so many people to become parents. But in vitro fertilization and embryo-freezing are frowned on by the Roman Catholic Church, which teaches that life begins at conception.

Most evangelicals accept in vitro, but believe frozen embryos have the right to full lives.

The government is of little help with all these challenges. While some countries have strict rules about assisted reproduction, limiting how long embryos may be frozen or how many may be transferred at once, the field remains largely unregulated in the United States

“We don’t know in the U.S. whether embryos are going to be treated as property or not, as children or not, or sui generis, as something different,” said Alta Charo, a bioethicist at the University of Wisconsin-Madison. “That keeps alive a debate around their moral status, their legal status, debates that quickly spiral into the black hole that is the abortion debate.”

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Storage containers at the National Embryo Donation Center in Knoxville, Tenn. Up to one million frozen embryos might be stored nationwide.CreditShawn Poynter for The New York Times

A Matter for the Courts

When Karla Dunston, an emergency room doctor, found out she had cancer in 2010, she asked Jacob Szafranski, the man she was dating, to contribute sperm so she could freeze some embryos for later use. He agreed, and they created three embryos before she started her cancer treatment.

They consulted a lawyer the day they visited the fertility clinic but never signed a written contract. Soon after, he ended the relationship. When Dr. Dunston finished treatment and wanted to become pregnant, he would not let her use the embryos.

After four years of litigation, an appeals court ruled last Friday that Dr. Dunston could use the embryos, based on the oral agreement the two made when the embryos were created. Mr. Szafranski is appealing.

The case highlights some of the complications of dealing with the growing ranks of frozen embryos.

Lawyers for both sides said their clients would not grant interviews, but court documents lay out their views. Dr. Dunston said she relied on Mr. Szafranski’s willingness to father a child; if she had thought he might change his mind, she could have used an anonymous sperm donor. She said that she would not seek child support, and that Mr. Szafranski could choose whether to be involved in his offspring’s life.

Mr. Szafranski argued that just as he would not have the right to force her to use the embryos, she should not be able to force him into fatherhood.

“It’s hard to fit this into any analytical framework,” said Brian A. Schroeder, Mr. Szafranski’s lawyer. “It’s emotionally charged, there are different circumstances in each of these cases, and it’s not her egg and his sperm anymore, it’s an embryo. Thirty years ago, before IVF, this could never have happened. But now that it exists, what do we do about it?”

This is not just a legal question. Religious and social views often come into play.

For example, the National Embryo Donation Center in Tennessee, which is endorsed by the Christian Medical Association, places embryos only with heterosexual couples married at least three years — and only after a home study exploring their readiness to be parents, as is required for families adopting a living child.

“We think the embryos deserve the same level of protections as children who are being adopted,” said Stephanie Wood-Moyers, marketing director of the center, where the Watts embryos were stored.

But the American Society for Reproductive Medicine, along with most doctors and abortion rights supporters, prefers the term “ embryo donation.”

“We and the society really strongly advocate that the term should be embryo donation, because adoption is a term for a live child,” said Dr. Craig Sweet, medical director of Embryo Donation International, in Florida, which works with singles and gay and straight couples, and requires no home study. “We’re not here to save embryos; we’re here to build families.”

Dr. Mark V. Sauer, of Columbia University’s Center for Women’s Reproductive Care, said the decision to donate unused embryos is difficult for some couples.CreditYana Paskova for The New York Times

The clinic buys eggs and sperm from donors whose profiles are likely to have broad appeal — like those who are tall, thin and well educated — then combines them to make embryos that are doled out to three or four families. Both the donors and the would-be parents know the embryos will be used by multiple families

For $12,500, patients get three tries, from a different batch of embryos each time — and a money-back guarantee for those who do not achieve a 12-week pregnancy.

“Our clients are typically people at the end of the line in terms of having a baby,” Dr. Zeringue said. “We used to have a regular donor embryo program, but the waiting list kept getting longer and longer, and in six years, we had less than a dozen donors.”

The new program, he said, helps him meet the demand.

But when word of the program spread in 2012, some doctors and lawyers questioned whether it was ethical for a company to create embryos it would own until they were implanted in a patient. Others were troubled by the whiff of eugenics in the company’s looking for the most marketable sperm and eggs — or the possibility that the children could, unknowingly, meet and marry their siblings.

Some called it a Costco approach to fertility, with quantity discounts to keep costs down.

“Make no mistake, this is commodification,” Andrew Vorzimer, a Woodland Hills, Calif., fertility lawyer, posted in his blog. “These are not donated embryos. Rather, they are embryos created from donors hand-selected by California Conceptions. It is one step removed from a mail-order catalog. The only difference is that the product being sold is nascent human life.”

New York law makes it illegal to create embryos for donation by fertilizing donor eggs with donor sperm except when done at the request of specific patients who intend to use the embryos themselves. California has no such prohibition.

“I do see the appeal of a cheaper approach,” said Rose Kesten Pondel, a Los Angeles family lawyer, “but for me, there’s a huge ‘ick’ factor with the company owning the embryos, and I worry about the slippery slope.”

Dr. Zeringue said his clinic makes embryos only when there are families to take them.

When the criticism began, he said, he asked the American Society for Reproductive Medicine whether his practices were ethically acceptable. A spokesman for the society said the ethics committee thought it would be premature to issue an opinion.

Clients praise the program for giving them a pregnancy faster and more cheaply than other options.

“We’d been through IVF, which was draining and upsetting and stressful, so when we heard about California Conceptions, the three tries and money-back guarantee, it was very reassuring,” said Adrienne, a San Diego woman who asked that her last name not be used to protect the family’s privacy. She became pregnant with boy-girl twins after the first embryo transfer.

Although California Conceptions does not tell clients who will share embryos with the same genetic parents, it does have a discussion site where clients can post the date of their transfer and other details. From those clues, Adrienne identified another San Diego family in her group.

She did not introduce herself until well into her pregnancy, when she knew from the site that the other woman was also having boy-girl twins, and was scheduled to deliver them by C-section the same day, at the same hospital.

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Adrienne, left, became pregnant with boy-girl twins after an embryo transfer at California Conceptions. She and her husband, Kevin, live near San Diego.CreditSandy Huffaker for The New York Times

“What if they get switched in the hospital?” Adrienne wondered. “A blood test wouldn’t tell them anything. We’d never know.”

‘My Potential Children’

Ms. Watts, of Mount Juliet, Tenn., said her six unused frozen embryos began to weigh heavy on her after her younger twins arrived.

“Those embryos are always in the back of my mind,” said Ms. Watts, a nondenominational evangelical. “I talked about it with my pastor, and when I was at church, I’d be thinking, I wish I could find a family in the congregation that wanted them. I think of them as my potential children.”

Ms. Watts wanted recipients who would agree to continued contact, and would use the embryos soon, giving her children siblings near their own age.

Some people find their match online, at sites like Miracles Waiting, where families can post what they are looking for. (Typical postings of available embryos: “4 frozen babies, ready for an active fun-loving home.” “Beautiful, intelligent athletic Caucasian embryos Looking for a Home.” Recipient postings: “I just want to be a mommy.” “Wanting to Start a Family. Tired of getting enough sleep.”)

But Ms. Watts expected her embryos to be snatched up quickly from the National Embryo Donation Center. When they were not, she turned to Facebook, and two weeks later, found Rayn and Richard Galloway, of Nameless, Tenn.

“We talked, we Skyped, we exchanged hundreds of messages, and when they called to say they wanted to go ahead, I was so relieved I cried,” Ms. Watts said.

Like the Wattses, the Galloways had had years of infertility treatment. When the two families met, they felt remarkably compatible, sharing a faith that divine will had brought them together.

“My husband’s words were, ‘It’s amazing, you found a 45-year-old version of us,’” Ms. Galloway said.

When Ms. Galloway, 27, came to spend the day in the Wattses’ playroom, with four children clambering over her, she said, “It was like I was seeing just what our kids would look like.”

“It’s not traditional, that’s for sure,” she added.

Through months of paperwork and hormone shots, the two families stayed in close touch.

On Easter, Ms. Galloway hid eggs for the Watts children. On Mother’s Day, they went to church together, then picnicked with their parents.

On May 12, they headed to Knoxville to have three embryos transferred to Ms. Galloway’s womb. Only two of the three made it successfully through the thaw, but finally, Ms. Galloway was on the path to motherhood.

A version of this article appears in print on , on Page A1 of the New York edition with the headline: Industry’s Growth Leads to Leftover Embryos, and Painful Choices . Order Reprints | Today’s Paper | Subscribe